musa bosco rajabu vs frolence julius chimazi 2023 tzhc 21685 10 october 2023

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPEAL NO. 03 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Rukwa at Sumbawanga in Misc. Land Application No. 21 of2021 which(griginated from Muze Ward Tribunal in MUSA BOSCO RAJABU .APPELLANT ’h ''W&k; W versus FROLENCE JULIUS CHIMAZI RESPONDENT W JUDGEMENT- August & MRISHA,J, W J& The present apiteaPfias been brought to this court by the appellant Musa Boscp Raja® as a second bite. At the beginning he appealed to the District Land and Housing Tribunal for Rukwa at Sumbawanga (the appellate tribunal) vide Miscellaneous Application No. 21 of 2021 which had its origin in Land Case No. 7 of 2021 before Muze Ward Tribunal (the trial tribunal) between him and the respondent Florence Julius Chimanzi who by then, was the applicant. i The subject matter of the dispute between the two is a piece of land with the size of 50 metres length and 19 metres width (the suit land) which is located at Kalakala Village in Muze, Sumbawanga District and which the respondent alleged that it was invaded by the appellant unjustifiably. Before the trial tribunal the respondent Stood as the administrator of the ptbe his late father, and owner of the suit land which the respondent claimedSe obtained by his Apart from such testimony, the respondent tendered before the trial sr, tribunal lette^of^^mini^rafibii^hoyying that he was appointed by the ji probate court to; administer the estate his late father. The same was admitted and formed^ part of the trial tribunal's record. %. % On his part,, the appellant alleged that his late father showed him all the documents pertaining to sale agreements of his land, including one Euzebius Fumaga, but he said that the land his late father had sold to that person is not the one the respondent claimed that he trespassed in. After a full trial, the trial tribunal found that the respondent managed to 2 prove his case against the appellant and proceeded to decide in his favour. As the above decision did not please the appellant, he appealed to the appellate tribunal claiming that the trial tribunal erred in law and fact to decide in favour of the respondent who had no locus standi to sue him, and that the said tribunal had no jurisdiction to inquire and determine the land dispute between him and the responHlnts ,. Unfortunately, his efforts to overturn the decisionWd orders of the trial tribunal proved futile as the said appellate^fribunai upheld the trial tribunal and made an order for costs.lBeforerthis court the appellant has 1. That, t^ap^LlatWdb^Slllted in law by upholding the nullity decision of^thewtrial tribunal which emanated from nullity proceeding^for^being initiated by a person (sic) lack (sic) locus 2. That the appellate tribunal erred in law for failure to appreciate that the proceedings before the tribunal were nullity ab initio for being improperly constituted as the same involved a secretary as a member of the trial tribunal. 3 3. That, the appellate tribunal erred in law following its failure to apprehend the fact that, the trial tribunal determined the matter which it lacks jurisdiction over the same hence renders the entire proceedings, decision and orders of both the tribunal null and void ab initio. The instant appeal was heard by way of written submissions and both parties complied to the order of this court dBld^the 17%pa^f July, 2023. Also, both parties were duly represented t^gttjoStraihed minds. As making his submission through th^did of%lr: Deogratius Phailod Sanga, learned Advocate and let Mn. CharlesXGervas Kasuku, also learned ________ _______________________ ,____________ Wh, ‘ ' submission, before he could windup by making a rejoinder submission. It is vyorth noting fo bear in mind at this very stage, that before starting to makeXhis submission in support of the present appeal, Mr. Sanga dropped the feclnd ground of appeal and proposed to argue the rest grounds of appeal by starting with the third and then end up with the first one. In regards the third ground of appeal, the counsel of the appellant submitted and humbly invited this court to subscribe that the trial 4 tribunal lacked jurisdiction to determine the land dispute between the parties herein because by the time it was entertaining the matter before it there was a new enactment of section 45 of the Written Laws (Miscellaneous Amendment) (No. 3) Act, 2021 (the Act) which was passed and published via a Government Notice No. 41 of 2021 and became operational on 11.10.2021. He further submitted that the said amendment sadjudicative waived‘W&, Wit,- powers of the ward tribunals over land disputes.grfd inter alia vested them with power to mediate land disM^^t^|ff® from 11.10.2021. The learned counsel alsogS^bmitt^lkthatWhpwevef on 13.10.2021, the WF Wk. W- trial tribunal comrnenced|(iearing and "determined the dispute despite there being aggw W which ousts it with adjudicative powers something which made its decision, orders and proceedings a nullity. Mr. Sanga weriWi submitting that since there was existence of the said amended jaw, the trial tribunal was not justified to go to the locus in quo on 29.10.2021 and proceed with the hearing of the matter as the said law is a procedural law which applies retrospectively to proceedings which are the subject of the instant appeal. He also submitted that since the said land dispute was not finalized until 11.10.2021 when the Act came into force, then it is obvious that at that 5 time the trial tribunal had no power to proceed determining the matter before it, rather it had to mediate the parties before it. To cement his proposition Mr. Sanga cited the case of Yakobo Gobre vs Raphael Daniel, Misc. Land Appeal No. 24 of 2022(HC-Arusha) (unreported). Having made the above submission, the appellants counsel urged this court to find that the third ground of appeal has merit and proceed to nullity and set aside the proceedings of the twocourts below. A Turning to the first ground of appeal, Mr. Sapga had> it thatTor a person to maintain proceedings successfully he/shemustmotbnly show that the Wk court has power to determine the issue before it, but also must show S a that he/she is entitled t(l bringthbmatter before the trial court or Wk lb . ■ Jill* tribunal as inthiBpase.';The caseofLujuna Shubi Balonzi Senior vs The Regiitere^Jjbstees^SlChama cha Mapinduzi [1996] T.L.R. In applyingthe apove position of law to the case at hand, the appellants counsel submitted that the respondent herein had no locus standi to sue and claim any interest over the suit land, thus the trial tribunal erred in admitting and determining the matter over the suit land when it accepted being moved by the respondent who had no locus standi to 6 sue the appellant meaning that its entire proceedings were a nullity which ought to be nullified by the appellate tribunal. Mr. Sanga further submitted that that despite testifying to be the administrator of the late Julius Alkado Chimazi, the appellant tendered before the trial tribunal a sale agreement bearing the name of Euzebius Fumaga whom he was not his administrator nor wlsr he granted with power of attorney to stand on behalf of that person., A The learned counsel was therefore, ofathe -view that" since the respondent had never been instructed-by oneguzebiusFumaga, nor was . "W w K whose name appeals in the sale agreement alleged to prove ownership respondent lacksaflpcus stlridi to sue over the same and thus the Before winding up his submission, Mr. Sanga submitted that the trial tribunal decided the matter In favour of the respondent basing on unproven allegation that the said sale agreement in the name of Euzebius Fumaga was made in favour of Julius Alkado Chimazi alleging that there was an affidavit made to that effect which in essence is 7 nowhere found in the records of the said tribunal which leaves such fact unmerited. Basing on the above allegations, the counsel for the appellant submitted that the available evidence in record reveals openly that the respondent failed to prove his case against the appellant in all fours. To back up his argument, Mr. Sanga Cited the case of Geita Gold Mining Limited vs Twalib Ismail & 3 Others, Civil Appeal No340§M20^S^T-^|yanza) < % ’’W’ (unreported), and urged this court to findythe findingsofsthe appellate tribunal wanting, and reverse tbe samejnC^ouiwf tl|e appellant. "bib-, In conclusion, the counsellor the appellanthumbly invited this court to W. 1™ find merit in the p|esehfe,appeaf-allowbjt with costs and nullify the decision as welfaBall orders made thereto by the two courts below. In • • respect of the third ground of appeal, fff that tjje appellate tribunal was correct in its decision since in the > decision df the trial tribunal there was no any incorrectness, illegality and impropriety to warrant revision. That at the time the Land Case No. 7 of 2021 was opened and its hearing commenced on the 6th Day of October, 2021 the said tribunal was vested with jurisdiction to try the matter before it. The learned counsel also submitted that since the Act came into force on the 11th 8 Day of October, 2021 while the case was already started to be heard by the trial tribunal, and since hearing of the said case was already on substantive issues, the said law (new amendment) cannot act retrospectively as procedural law. To support that proposition, the counsel for the respondent referred the provisions of section 14 and 32 (1) (a, b, c, d, ez f) by he Interpretation of Laws Act, Cap 1 R.E. 2019. He also cited|thecase ofRickson P. 'a MlF Ki sang a vs Wilington Ngowi, Land Appeal No^ 2pf^022(HC-Mosh i) (unreported) in which it was held thaw^^yW, Ik being published in^thd ^vernment Gazette No. 41 Vol. 102. By then thi^-lawjfdomes iritbioperation, the case at the ward tribunal parted hear/ri(jdnter partes as shown above since on 21/5/2021 and. thereafter proceeded ex-parte and judgment delivered 2$b dayof&Siber, 2021. Therefore, it is my considered opinion when the above law came into operation the case was already started to be heard by the Ward Tribunal, and since hearing was already on substantive issues, the said law cannot act retrospectively as procedural law!' 9 Mr. Kasuku concluded on that ground by submitting that the case of Yakobo Gobre (supra) cited by his counterpart is distinguishable to the circumstances of the case at hand in the sense that under the doctrine of precedent since the case of Rickson P. Kisanga (supra) is the recent one then he invited this court to take it as persuasive. ^0^ In submitting about the first ground of appeal, the respondents counsel "Wk contended that the respondent has a locus standhsince Reopened the case as the administrator of the deceased'sestate.nameiygulius Alkado M Chimanzi. ■<. > administratiogftfiking him tb^be-theRadministrator of his late father's W 1. %- estate. The learned counsel referred this court to the case of Suzana S. Waryoba vs Shija Dalawa, Civil Appeal No. 44 of 2217 (unreported) W. "w ' with a vievy of supporting the above proposition. Regarding the argumentation by the appellant's counsel that the respondent failed to prove his case before the trial tribunal, Mr. Kasuku submitted that it is a trite law that the appellate court cannot determine matters which were not raised and determined by the lower court stating that the issue that the respondent did not discharge his duty of io proving the case against the appellant, was not raised and determined by the appellate tribunal. Hence, to him the case of Geita Gold Mining Limited (supra) cited by the appellants counsel is distinguishable in the circumstances of the case at hand. In rejoinder, Mr. Sanga submitted that the respondent's submission in respect of the third ground of appeal is based dm misguidance and wrong misunderstanding and misinterpretation-M the law and. facts % > concerned. That the respondent's couns^confif|ed«W^n two facts that is date of filing of the matter and^ateipf hearing of the matter. He also submitted that rfe^atter^for^ihe. trial tribunal was filed on ft Jjk 06.10.2021 and its; hearing initiblly^comnrcnced on 13.10.2021 which is Jo equivalent to^^^day^gftei^tte«t came into operation. In the it circumstance, itwastheviewof the appellant's counsel that the case of Rickson P. Kosanga;(supra) cited by his counterpart is distinguishable and not appiicable|in the circumstance of the present case, because in that case hearing of the matter in dispute commenced before the amendments concerned came into operation while in the instant case the matter commenced on 13.10.2021 subsequent to the operation of the Act. ii It was also the submission of Mr. Sanga that the law concerned herein is a procedural law and not substantive as wrongly assumed by the respondent's counsel in his reply submission, and in that case the said amendments apply retrospectively. Concerning the first ground of appeal, the appellant's counsel rejoined by submitting that the respondent and his counsel never disputed the fact that the respondent had no locus standi to'‘sue.tho appellant for he V t M., W was suing on behalf of the late Julius Alcado ChirhazrWiile claiming ownership of the disputed land^hich||g;W^igelf^lleg^id and to a certain '’Wk extent, adduced evidencelto show^that the disputed land was the w w property of the late "EzebiuSkFumaga-, whom he is neither his w * w administrator nor ppsses^ing any power of attorney to sue on his behalf. duty gf provingjiis case to the required standard is a new matter, Mr. Sanga submitted that such allegation is based on misguidance of the counsel for therespondent because that matter was among the issues raised and determined before the appellate tribunal. In the end, the learned counsel reiterated his previous humble prayer that this court be pleased to find merit in the present appeal, allow it, 12 nullify and set aside the decisions of the two courts below and make an order for costs. As it has already been indicated above, this appeal was heard by way of written submissions which obviously, resulted from the noble works of the counsel for the parties whom I take this opportunity to congratulate for their industrious works in the preparation of the same. I am all aware that the appellate court cannot^ interfere -with the non directions; See DPP vs Jaffari MfaumeKp\rawa [1981] TLR 149 and Mustafa Darajani vs The Republic^Criminal Appeal No. 277 of 2008(CAT-Iringa) (unreported).♦ Mjk w-- Having revi^i^ff^fc^ p^feegSfcgsIfi^^he trial tribunal, the appellate tribunalytheir respective :decisions, the grounds of appeal as well as the submissions forapd ag<unst the said grounds of appeal, I am inclined to w. find out whgther the two courts below had jurisdiction to entertain the land dispute between the parties herein. I will address the grounds of appeal in the manner proposed by the parties through their learned counsel. In the third ground, it has been alleged by the appellant that the appellate tribunal erred in law for its 13 failure to apprehend the fact that the trial tribunal determined the matter which it lacks jurisdiction over it. As it appears, a big discussion has been made by the rival learned advocates with each of them trying to pull on his side in order to convince the court to decide in his clients favour. While the counsel for the appellant has taken the view that the trial| tribunal had no jurisdiction to entertain the land dispute beforeitdueto existenceof the new amendment of law which has ousted .its jurisdictiontto determine land disputes, the counsel forrthe respondenthas maintained that the said law did not take awa^jsuch jurisdictidrtjp the ward tribunal. Basically, it is true that where the legislation affects substantive rights, it will not be construed W.haVei.retrosped:ive operation unless a clear intention, tp that..effect..is manifested, whereas if it affects procedure onlywprima faciedtbperates retrospectively unless there is good reason to the contrary; fee Municipality of Mombasa vs Nyali Limited [1963] E.A 371. The centre of dispute between the counsel for the parties in this case is on enactment of section 45 of the Written Laws (Miscellaneous Amendment) No. 3) Act of 2021 which came into force on 11.10. 2021.The said provision of the law has amended section 13 (2) of the 14 LDCA which formerly empowered the Ward Tribunal to enquire into and determine land disputes the value of which was not exceeding three million Tanzanian Shillings. Following such amendment, the Ward Tribunals no long have such adjudicative powers. Their current role is to mediate land disputes within a period of thirty days, and in the even they fail to rlconcile parties then 'wx the ward tribunals have to issue a certificate tq;the?partieSySO that they % W, can institute a land case in the District Land?and Housing ■Tribunal. The above procedure is provided under ?sectign^5(4) of the Written Laws (Miscellaneous Amendments) (No. SjWXct, 2021 which provides that: ♦ 'W 'M "The ^tnc^an^a/^^Shg Tribunal shall not hear any » S& proceedingaffectingthe - title to or any interest in land unless the ward tribunal has:certified that it has failed to settle the matter W arnicabiy Ji " 'W^gF Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal." •15 From the above provisions of the law, it is obvious that following the enactment of the said written law, the ward tribunals no longer have jurisdiction to inquire into and determine land disputes; their role is therefore to mediate parties to the land dispute in an amicable way. Back to the case at hand, it on record that despite the fact that the filing of the Land Case No. 7 of 2021 between the^appellant and the WK respondent herein was done on 06.10.2021 prioK to thBenactment of the Written Laws (Miscellaneous Amendments) ^(No^j^Act, 2021, its hearing commenced on 13.10.2021andendedlup om29.10.2021 when !<£!$&’■ the trial tribunal visited gathered some evidence there. That being theKase, it iskny Sppsidered opinion that the hearing of the Wf Ml kL W2 KiK. land dispute by the trial tribunal was done subsequent to the enactment > % w and operation ofKhe Written Laws (Miscellaneous Amendments) (No. 3) Wb ■■ 1R- Act, 202Ttwhich tells that by that time the said tribunal already had no jurisdiction to entertain that dispute by determining it. It is a trite law that procedural amendments to a law, in the absence of anything contrary, are retrospective in the sense that they apply to all actions after the date they come into force even though the action may have begun earlier or the claim on which action may be based accrued 16 on an anterior date; See Lala Wino vs Karatu District Council, Civil Application No. 132/02/2018(CAT-Arusha) and The Director of Public Prosecutions vs Jackson Sifael Mtares & Three Others, Criminal Application No. 20 of 2018 (all unreported). In our case, it is apparent that when the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 came into operation on 11.10.2021, commenced; it took off on 13.10.2021 wiiich is ^quivaleht^to two days after the said new law came into.force.;ln the,c!rcumstance, it is obvious that the said case was overtaken by |he operation of the said new law. Also, it is obvious that hearing of thegzasegs a matter of procedure as it ib involves varioupissuesWincludiog,^but not limited to taking oaths of witnesses,, recordinq^oCevidence, admission of documentary evidence "MS examination and re-examination of witnesses. Hence, I agree with the % *s* counsel for the appellant that the new amendment dealt with procedure and not as argued by the respondent's counsel. Thus, being guided by the principle of law in the above cases, I am of the settled view that the amendment of section 13 of the LDCA by section 45 of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021 operates retrospectively even to pending actions like the one which 17 is the subject of the present appeal. With the above reasons, the third ground of appeal by the appellant is therefore found to be meritorious. Coming to the first ground of appeal, the counsel for the appellant has submitted that the appellate tribunal erred in law by upholding the nullity decision of the trial tribunal which emanated from nullity proceedings for being initiated by a person (sic) iSl^sic) locus standi. The question here is whether such averment by'the appellant's counsel is correct. W. On my part, I do not think if that isIcprrectZfesayIso because I had enough time to peruse thl records of the trial tribunal regarding such complaint. In thepcourse ofwoingsd> I came across letters of administration-showing that thegresppndent had been appointed by the probate..court to be :an:administrator of the estate of one Julius Alcado told the said tribunal that the suit land is the estate of his late father who had been gifted the same by one Euzebius Fumaga. The records of the trial tribunal clearly depicts that such fact was not disputed by the appellant meaning that the respondent had a locus standi to sue the appellant in order to defend his alleged father's estate. 18 In my view, the claim that the respondent had no such legal capacity, would have hold water had it been stated and proved that the suit land belonged solely to one Euzebius Fumaga. Thus, basing on such apparent reasons, I am unable to go along with the invitation of the learned advocate for the appellant. The foregoing makes the first ground of appeal to crumble for want of merit. Therefore, due to the above discussion and the; foreqoinq|reasons, it is my response to the above issue that the twoicourts^bolow had no jurisdiction to entertain the land^spi®?fetvy^^^Jwo parties herein. Hence, the present appe^s^llov^dgot^bexten? hereinabove stated. Consequently, the decisions andWders of the appellate as well as the trial tribunals^ale^thSfetp, Sre^rSy quashed and set aside. Either .. Wk., tel. . . . ■, ....................... . accordance withtheWurrent procedural requirements. Finally, since the anomalies,spotted;^bove resulted from the two lower courts, I make no order as to costs? It is so ordered. JUDGE 10.10.2023 19 DATED at SUMBAWANGA this 10th Day of October, 2023. 20